Citation Nr: 0207117
Decision Date: 07/01/02 Archive Date: 07/10/02
DOCKET NO. 99-19 456 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for the cause of
veteran's death.
2. Entitlement to Dependants' Educational Assistance (DEA)
allowance under 38 U.S.C. chapter 35.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. D. Deane, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1971 to
February 1974. He died on October [redacted], 1998. The appellant
is his surviving spouse.
This case comes before the Board of Veterans' Appeals (Board)
from a March 1999 rating decision rendered by the Jackson,
Mississippi, Regional Office (RO) of the Department of
Veterans Affairs (VA) which denied the appellant service
connection for the veteran's cause of death.
A personal hearing was to be held in January 2000 at the
Jackson, Mississippi, RO. However, the appellant failed to
report to her rescheduled hearing.
In an October 2000 decision, the Board denied service
connection for the cause of the veteran's death and denied
entitlement to DEA benefits. The veteran appealed to the
United States Court of Appeals for Veterans Claims (Court).
In an Order dated in May 2001, the Court vacated the Board's
October 2000 decision and remanded the matter for
readjudication consistent with the Veterans Claims Assistance
Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096
(2000) codified as amended at 38 U.S.C.A. §§ 5100, 5102,
5103, 5013A, 5106, 5107, 5126 (West Supp. 2001).
FINDINGS OF FACT
1. All evidence requisite for an equitable disposition of
the appellant's claim for service connection for the
veteran's cause of death has been obtained and examined, and
all due process concerns as to the development of the claim
have been addressed.
2. The immediate cause of the veteran's death in October
1998 was identified as adenocarcinoma of the cecum with liver
metastasis.
3. The veteran's adenocarcinoma of the cecum with liver
metastasis was not present during service or manifested to a
compensable degree within one year subsequent to his
separation from service, nor is it shown to be related to his
service.
4. The veteran was service-connected for nodular
lymphohistiocytic lymphoma due to exposure to Agent Orange,
rated as 30 percent disabling, and also received a
noncompensable (zero percent) disability rating for status
post medial meniscectomy of the left knee, prior to his death
in October 1998.
5. Neither the service-connected nodular lymphohistiocytic
lymphoma nor the service-connected status post medial
meniscectomy of the left knee caused or contributed
substantially or materially to cause the veteran's death.
CONCLUSIONS OF LAW
1. As adenocarcinoma of the cecum with liver metastasis was
not incurred in or aggravated by service, and is not presumed
to have been incurred during service, service connection for
the cause of the veteran's death is not warranted.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 1991 and
Supp. 2001); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2001).
2. The veteran's service-connected disabilities were neither
the principal or contributory cause of his death.
38 U.S.C.A. § 1310 (West 1991 and Supp. 2001); 38 C.F.R.
§ 3.312 (2001).
3. The appellant is not entitled to receive a DEA allowance.
38 U.S.C.A. § 3501 (West 1991 & Supp. 2002); 38 C.F.R. §
3.807 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Entitlement to Service Connection for the Veteran's Cause
of Death
The appellant contends that the veteran's service-connected
nodular lymphohistiocytic lymphoma, due to Agent Orange
exposure, was a contributory cause of his death from cancer
of the cecum. After reviewing the record, the Board finds
that the evidence does not support her contentions and her
claim for service connection for the cause of the veteran's
death must fail.
In a claim where service connection was not established for
the fatal disability prior to the death of the veteran, the
initial inquiry is to determine whether the fatal disorder
had been incurred in or aggravated by service. The Board
must determine whether the fatal disorder should have been
service-connected. See 38 C.F.R. § 3.312 (2001). Service
connection is granted for a disability resulting from an
injury suffered or disease contracted while in active duty or
for aggravation of a preexisting injury suffered or disease
contracted in the line of duty. See 38 U.S.C.A. § § 1110,
1131 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303 (2001). In
addition, certain disorders - including malignant tumors --
are presumed to have been incurred during service when
manifested to a compensable degree within a specified time
(usually one-year) following separation from service. See 38
C.F.R. §§ 3.307, 3.309 (2001).
In a claim where service connection is established for a
disability prior to the death of the veteran, the initial
inquiry is to determine whether the service-connected
disability was either the principal or contributory cause of
the veteran's death. See 38 C.F.R. § 3.312 (2001). A
service-connected disability will be considered as the
contributory cause of death when that the disability
contributed substantially or materially to death, combined to
cause death, or aided assistance to the production of death.
It is not sufficient to show that it casually shared in
producing death, but rather it must be shown that there was a
causal connection. See 38 C.F.R. § 3.312(c).
In this case, the veteran died in October 1998. The
veteran's death certificate lists the immediate cause of his
death as adenocarcinoma of the cecum with liver metastasis.
Based on the evidence, the cause of the veteran's death was
not incurred in or aggravated by service. The veteran's
service medical records did not contain a diagnosis of
adenocarcinoma of the cecum with liver metastasis and the
veteran was not diagnosed with cancer of the cecum until many
years following discharge from service.
Prior to his death, the veteran was service-connected for
nodular lymphohistiocytic (non-Hodgkin's) lymphoma due to
Agent Orange exposure, with a 30 percent rating. He also
received a noncompensable (zero percent) disability rating
for status post medial meniscectomy of the left knee. The
Board must now determine if either of the veteran's service-
connected disabilities was a contributory cause of the
veteran's death.
It is neither contended nor shown that the service-connected
status post medial meniscectomy of the left knee was a
contributory cause of the veteran's death. In this regard,
the Board notes that, generally, minor service-connected
disabilities, particularly those of a static nature or not
materially affecting a vital organ, would not be held to have
contributed to death primarily due to unrelated disability.
In the same category there would be included service-
connected disease or injuries of any evaluation (even though
evaluated as 100 percent disabling) but of a quiescent or
static nature involving muscular or skeletal functions and
not materially affecting other vital body functions.
38 C.F.R. § 3.312(c)(2).
It is contended that the veteran's service-connected nodular
lymphohistiocytic lymphoma was a contributory cause of his
death. The claims folder contains two medical opinions that
concern the issue of whether service-connected nodular
lymphohistiocytic lymphoma was a contributory cause of death
for the veteran.
The VA treatment records contain an October 1998 consultation
report that contains an assessment that the veteran's bowel
obstruction was "likely secondary to the cecal mass but
could also be due to recurrent lymphoma."
In January 1999, Dr. Allred provided a medical opinion, which
stated that there was no evidence to support a relationship
between the adenocarcinoma of the cecum and the veteran's
previous diagnosis of non-Hodgkin's lymphoma. The physician
also noted that there was no relationship between the
veteran's chemotherapy for lymphoma and the development of
adenocarcinoma of the cecum.
The Board considers the medical opinion of Dr. Allred to be
more probative than the assessment in the consultation
report, which concerned what was causing the veteran's bowel
obstruction, rather than specifically considering whether his
fatal adenocarcinoma was related to his service-connected
non-Hodgkin's lymphoma. When there is conflicting medical
evidence in a case, the evidence must be considered and
weighed in terms of its persuasiveness. The Board may not
ignore the opinion of a treating physician; however, it is
free to discount the credibility of that physician's
statement as long as the Board provides an adequate report of
reasons or bases for that determination. See Sanden v.
Derwinski, 2 Vet. App. 97, 100-01(1992); Hatlestad v.
Derwinski, 1 Vet. App. 164, 169 (1991). The 1998
consultation report states that the bowel obstruction
experienced by the veteran before his death was likely
secondary to the cecal mass but could also be due to
recurrent lymphoma. Even if this statement specifically
concerned the immediate cause of the veteran's death, the
Board notes that merely noting the possibility of a
relationship between the veteran's service-connected
disability and the immediate cause of his death would
significantly reduce the value of the medical opinion. See
Timberlake v. Gober, 14 Vet. App. 122, 130-31 (2000), citing
Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). In
contrast, Dr. Allred was quite clear in stating that there
was no relationship between the fatal adenocarcinoma of the
cecum and the veteran's previous diagnosis of non-Hodgkin's
lymphoma. Based on the reasons cited above, the Board finds
the medical opinion by Dr. Allred to be the most probative
evidence concerning whether the service-connected non-
Hodgkin's lymphoma was a principal or contributory cause of
the veteran's death.
The Board acknowledges that the appellant stated her belief
that the veteran's lymphoma contributed to his death from
cancer of the cecum. The appellant has not demonstrated that
she has the medical expertise that would render competent her
statements as to the relationship between the veteran's cause
of death and his service-connected disability. Her opinion
alone cannot meet the burden imposed by 38 C.F.R. § 3.3 with
respect to the relationship between the death of the veteran
and his disability. See Moray v. Brown, 2 Vet. App. 211, 214
(1993); see also Espiritu v. Derwinski, 2 Vet. App. 492
(1992).
The appellant's statements qualify as competent lay evidence.
Competent lay evidence is any evidence not requiring that the
proponent to have specialized education, training, or
experience. Lay evidence is considered competent if it is
provided by a person who has knowledge of facts or
circumstances and who can convey matters that can be observed
and described by a layperson. See 66 Fed. Reg. 45,620,
45,630 (Aug. 29, 2001) (to be codified as amended at 38
C.F.R. § 3.159(a)(1)). Competent medical evidence is
evidence provided by a person who is qualified through
education, training, or experience to offer medical
diagnoses, statements, or opinions. See 66 Fed. Reg. 45,620,
45,630 (Aug. 29, 2001) (to be codified as amended at 38
C.F.R. § 3.159(a)(2)). Competent medical evidence is
considered more probative than competent lay evidence.
In brief, the medical evidence does not demonstrate that
nodular lymphohistiocytic lymphoma was a contributory cause
of the veteran's death. Dr. Allred's medical opinion stated
that there was no evidence to support a relationship between
the adenocarcinoma of the cecum and the veteran's previous
diagnosis of non-Hodgkin's lymphoma. Only one physician, Dr.
Tames, stated that the veteran's immediate cause of death
could be due to his recurrent lymphoma. His medical opinion
was found to be less probative than that of the other
physician, Dr. Allred.
The evidence does not support a conclusion that either
service-connected disability was a principal or contributory
cause of the veteran's death. Moreover, the evidence also
shows that the post service manifestation of adenocarcinoma
of the cecum with liver metastasis - which is the named cause
of the veteran's death -- was in no manner related to
service, or to an inservice event. The Board therefore
concludes that the preponderance of the evidence is against
the appellant's claim for entitlement to service connection
for the cause of veteran's death.
II. Entitlement to DEA benefits
The appellant seeks to receive Dependents' Educational
Assistance (DEA). Basic eligibility for DEA exists if the
veteran: (1) was discharged from service under conditions
other than dishonorable, or died in service; and (2) has a
permanent total service-connected disability; or (3) a
permanent total service-connected was in existence at the
date of the veteran's death; or (4) died as a result of a
service-connected disability; or (if a service person) (5) is
on active duty as a member of the Armed Forces and now is,
and, for a period of more than 90 days, has been listed by
the Secretary concerned as missing in action, captured in
line of duty by a foreign Government or power. The issue of
entitlement to DEA in this case depends on whether the
veteran died as a result of a service-connected disability.
As the appellant's claim for service connection for the cause
of the veteran's death is denied, entitlement to DEA benefits
is also denied. See 38 U.S.C.A. § 3501 (West 1991 & Supp.
2002); 38 C.F.R. § 3.807 (2001).
III. Veterans Claims Assistance Act of 2000
A change in the law, on November 9, 2000, redefined the
obligations of VA with respect to the duty to assist and
included an enhanced duty to notify the claimant of the
information and evidence necessary to substantiate a claim
for VA benefits. See Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. §§ 5100 et. seq. (West Supp. 2001).
Implementing regulations for VCAA have been published.
66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
Except for amendments not applicable, the provisions of the
regulations merely implement the VCAA and do not provide any
rights other than those provided by the VCAA. 66 Fed. Reg.
45,629 (Aug. 29, 2001).
The Board has conducted a complete and thorough review of the
veteran's claims folder. The Board finds that the RO advised
the appellant of the evidence necessary to support her claim
for entitlement to service connection for the veteran's cause
of death. The appellant has not indicated the existence of
any pertinent evidence that has not already been requested,
obtained, or attempted to be obtained. The RO made all
reasonable efforts to obtain relevant records adequately
identified by the appellant. All evidence identified by the
appellant relative to this claim has been obtained and
associated with the claims folder. The RO also obtained an
opinion concerning the possible relationship between the
service-connected non-Hodgkin's lymphoma and the
adenocarcinoma of the cecum, to which the veteran's death was
attributed. The Board finds that VA's duties to assist the
claimant and to notify her of the evidence necessary to
substantiate her claim have been satisfied.
ORDER
Service connection for the cause of the veteran's death is
denied. Entitlement to DEA benefits is denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.